Jeff Stein | Washington Post | November 3, 2010
Daniel Pines, an assistant general counsel at the CIA, has asserted in a law journal that the abduction of terrorism suspects abroad is legal under U.S. law, even when the suspect is turned over to countries notorious for torture.
“There are virtually no legal restrictions on these types of operations,” Pines asserts in the current edition of the Loyola University Chicago Law Journal.
“Indeed, U.S. law does not even preclude the United States from rendering individuals to a third country in instances where the third country may subject the rendered individual to torture. The only restrictions that do exist under U.S. law preclude U.S. officials from themselves torturing or inflicting cruel and unusual punishment on individuals during rendition operations, or rendering individuals from a place of actual armed conflict or occupation -- all of which prove to be narrow limitations indeed,” Pines writes.
Pines said he was expressing his own views in the article, and that “nothing in the contents should be construed as asserting or implying U.S. Government authentication of information or CIA endorsement of the author’s views.”
But his rank as a senior legal official at the spy agency is bound to attract widespread notice.
Asked for comment, the American Civil Liberties Union was predictably scornful of Pines’s assertions.
“The article does not even address the most extreme form of rendition carried out under the Bush administration: renditions to U.S.-run ‘black-site’ prisons, where Americans, not foreign intelligence services, were the jailers and the torturers,” Ben Wizner, litigation director of the ACLU’s National Security Project, told SpyTalk.
“Mr. Pines offers no arguments whatsoever for the legality of those operations, nor could he: forced disappearance, arbitrary detention, and torture are unequivocally prohibited under both U.S. and international law.”
Wizner continued, “The article does not properly distinguish between conduct that is legal and conduct that is legally redressable. To be sure, every case to date brought by a victim of the Bush administration’s rendition policies has been dismissed by U.S. courts -- but none of those courts addressed the legality of the challenged practices. Rather, the cases were dismissed on the basis of overbroad secrecy and immunity claims. Indeed, the CIA has invoked the state secrets privilege precisely to prevent courts from answering the very question that Mr. Pines contends remains unsettled: whether the extrajudicial transfer of prisoners to detention without charge and interrogation without legal restraint violates the law.”
In the article, Pines did not address the case in which nearly two dozen CIA operatives were brought to trial in connection with an extraordinary rendition: the February 2003 abduction in Milan of an al-Qaeda suspect known as Abu Omar. In that case, U.S. law turned out to be irrelevant: All but a few of the 23 defendants, whom the court granted diplomatic immunity, were convicted in absentia on charges of kidnapping.
Omar, whose true name is Hassan Mustafa Osama Nasr, was taken to Egypt, where he said he was tortured. Now free but under watch in Egypt, he has granted interviews and displayed his scars to reporters.
Michael Scheuer, former head of the CIA's Osama bin Laden unit, said three years ago that national security officials in the Clinton administration "had no qualms" about transferring al-Qaeda suspects to countries with reputations for torture.
"There were no qualms at all about sending people to Cairo," Scheuer told a House Foreign Affairs Subcommittee hearing on the treatment of terrorism suspects picked up by the CIA. There was a "kind of joking up our sleeves about what would happen to those people in Cairo in Egyptian prisons,” he said.
The Obama administration has not repudiated the practice of rendition but has said that it will never transfer suspects to countries if it believes they will be tortured there.